Terms and Conditions
Standard Terms and Conditions
These Standard Terms and Conditions apply to all Services provided by Zecast. By signing Zecast Master Service Agreement and each Order Form for Zecast Services, Customer has accepted and agreed to the following Standard Terms and Conditions:
1 DELIVERY OF SERVICES; TERMS.
1.1 Delivery of Services.
By executing an Order Form, Customer agrees to take and pay for, and, by executing the Order Form, Zecast agrees to provide, the Service(s) during the Initial Term and for any Renewal Term, as specified in section 1.2(b) below.
(a) Initial Term. The initial term for each Service shall commence on the Service Commencement Date as indicated on the Order Form attached hereto, and shall terminate on the date set forth in the Order Form.
(b) Renewal Term(s). At the conclusion of the initial term, each Service shall continue automatically for a period equal to the Initial Term or the respective most recently ended renewal period unless and until Customer notifies Zecast in writing at least thirty (30) days prior to the end of the Initial Term orthirty days prior to end of the respective most recent renewal period, as applicable, that the Customer has elected to terminate such Service, in which case such Service shall terminate at the end of such term. The termination of any specific Service shall not affect Customer’s obligations to pay for other such Service(s) or Zecast’s obligations to deliver such other Service(s).
2 SERVICE CHARGES.
2.1 Service Charges.
Zecast shall invoice and Customer agrees to make payments for all Services ordered from Zecast Order Forms as described in Service Charge Description document.
All fees charged by Zecast for Services are exclusive of all taxes, duties, tariffs and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer shall be responsible for and shall pay in full, except for taxes based on Zecast’s net income.
3 CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY; OWNERSHIP; LICENSE GRANTS.
3.1 Confidential Information.
(a) Non-disclosure and Non-use Obligation. Zecast and Customer agrees that it shall not make use of, disseminate, or in any way disclose any Confidential Information of the other Party to any third Party, person, firm or business. Furthermore, the existence of any business negotiations, discussions, consultations or agreements in progress between the Parties shall not be released to any form of public media without written approval of both Parties. Each of the Parties agrees that it shall treat all Confidential Information of the other Party with the same degree of care as it accords to its own Confidential Information, and each of the Parties represents that it exercises reasonable care to protect its own Confidential Information. Each Party agrees that it shall disclose Confidential Information of the other Party only to those of its employees, contractors or other agents who need to know such Confidential Information and certifies that such employees have previously agreed in writing, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement. The Party receiving Confidential Information (the “Recipient”) shall immediately give notice to the disclosing Party (the “Discloser”) of any unauthorized use or disclosure of the Confidential Information. Recipient agrees to assist Discloser in remedying any such unauthorized use or disclosure of the Confidential Information.
(b) Exclusions from Non-disclosure and Non-use Obligations. Zecast and Customer agree that obligations under section 3.1(a) with respect to any portion of the other Party’s Confidential Information shall terminate when the Party seeking to avoid its obligation under such paragraph can document that, with respect to the Confidential Information: (i) it was in the public domain at or subsequent to the time it was communicated to Recipient by Discloser through no fault of Recipient; (ii) it was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (iii) it was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser, and Recipient can demonstrate that such development was independent of any Confidential Information; (iv) or the communication was in response to a valid order by a court or other governmental body, was otherwise required by law, or was necessary to establish the rights of either Party under this Agreement. In the event that either Party is legally required to disclose any of the Confidential Information, the Discloser shall provide the Recipient with prompt written notice thereof so that the Recipient may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement.
(c) The Parties stipulate that a breach of section 3.1 by Recipient shall cause immediate and irreparable harm and significant injury to Discloser, for which there is no adequate remedy at law, and that Discloser shall be entitled, in addition to any other rights and remedies it may have, to injunctive relief, specific performance and other equitable remedies to restrain any threatened, continuing or further breach of section 3.1. Recipient shall immediately advise Discloser of any discovered breach by Recipient or its Representatives and shall reasonably cooperate, at Recipient’s expense, in retrieving the disclosed Confidential Information and restricting any continuing breach.
3.2 Intellectual Property.
(a) Ownership of Confidential Information and Other Materials. All Confidential Information shall remain the property of the Discloser. All materials (including without limitation, documents, drawings, models, apparatus, sketches, designs and lists) furnished to one Party by the other, and which are designated in writing to be the property of such Party, shall remain the property of such Party and shall be returned to it promptly at its request, together with any copies thereof.
(b) Customer agrees that it shall not decompile, disassemble or reverse engineer Zecast Technology.
3.3 License Grants.
(a) By Zecast. Zecast hereby grants to Customer a non-exclusive, royalty-free license, during the Initial Term and any Renewal Terms, to use Zecast Technology solely for the purposes of using the Service(s). Customer shall have no other right to use Zecast Technology for any other purpose other than using the Service(s). During the term of this Agreement, Customer may not:
(i.) Rent, lease, encumber, pledge, lend, copy, make available, or resell Service(s) to any third party, except as expressly permitted in the Agreement;
(ii.)Separate the components of the Service(s) made up of multiple components by upgrading or downgrading the Services(s) at different times, except as agreed in writing by the parties;
(iii.) Remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear with use or delivery of the Service(s);
(iv.) Reverse engineer, decompile, or disassemble the Service(s), except only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(b) By Customer. Customer hereby grants to Zecast a non-exclusive, royalty-free license, during the Initial Term and any Renewal Term, to use Customer Technology solely for the purposes of providing the Service(s). Zecast shall have no other right to use Customer Technology for any other purpose other than providing the Service(s). Both Customer and Zecast grant each other the right to use information derived from the performance of Zecast’s Service(s) to improve the Services in a manner consistent with and without violating the terms as specified in above sections 3.1 and 3.2.
4 Zecast OBLIGATIONS.
4.1 Zecast Representations
Zecast represents and warrants that it has the legal right to enter into the Agreement and perform its obligations there under. Zecast represents and warrants that the performance of its obligations and delivery of the Services to Customer shall not infringe on any intellectual property rights, including patents, copyrights, or trademarks of any third parties.
4.2 Service Level Warranty.
(a) In the event that Customer experiences a period in which Zecast does not meet the specific guarantees made within the applicable Specification Sheet or Service Level Agreement for any specific Service provided by Zecast, Zecast will provide Customer with a Service Credit, in accordance with section 4.2(c) below, for the period in which Zecast did not meet the specific guaranteed levels for specified Services(s) provided. In the event Customer is of the opinion or believes there was a period during which Zecast did not meet the specific Service Level guarantee for Service provided by Zecast, Customer shall have fourteen (14) days from the end of the period in question to notify Zecast of an allegation whereby the specific Service Level guarantee was not met. In the absence of any such notice by Customer to Zecast, Customer shall not be entitled to a Service Credit even if it is later determined the specific Service Level guarantee was not met.
(b) The Service Level Warranty for any Service shall not apply to performance issues (i) caused by factors outside of Zecast’s reasonable control, (ii) that resulted from any actions or inactions of any third parties, (iii) from any actions or inactions by Customer other than customary usage of Services, or (iv) that resulted from Customer’s equipment and/or third party equipment not under the control of Zecast.
(c) The amount of Service Credit to the customer shall be expressed in U.S. dollars and be determined based on a fraction of the customer’s monthly minimum service purchase commitment for the respective Service which the guaranteed service level(s) was not met expressed in or converted to U.S. dollars. The applicable Service Credit shall be calculated as follows:
SC = (DNC / ADM) X AMC
“SC” or “Service Credit” means the amount of service credit to be issued.
“DNC” or “Days Not in Compliance” means the total number of 24 hour periods at any time in which the guaranteed service level(s) was not met.
“ADM” or Actual Number of Days in Month” means the actual number of days in the month of the respective billing period.
“AMC” or “Average Monthly Commitment” means the customer’s average service purchase commitment over the past twelve (12) months of Services, for the respective Service which the guaranteed service level(s) was not met, expressed in or converted to U.S. dollars.
All Service Credits shall be applied to the invoice following the end of the billing period in which the guaranteed service level(s) was not met and all Service Credits shall expire after sixty (60) days from the end of the respective contract period during which the guaranteed service level was not met.
(d) Customer may terminate its order for any specific Service for cause and without penalty by notifying Zecast in writing within five (5) days following receipt of invoice in the event that Customer is eligible to receive more than 20% of Customer’s monthly fees for the respective Service in Service Credits. Such termination shall be effective thirty (30) days after receipt of such notice by Zecast.
4.3 DISCLAIMER OF WARRANTY.
THE WARRANTIES SET FORTH HEREIN ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY Zecast. Zecast EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ALL OTHER EXPRESS WARRANTIES AND ALL DUTIES, OBLIGATIONS AND WARRANTIES IMPLIED IN LAW, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Zecast DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, SUBJECT TO THE PROVISIONS SET FORTH IN SECTION 4 HEREOF. Zecast’S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF Zecast ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES.
4.4 LIMITATION OF LIABILITY.
NEITHER Zecast OR CUSTOMER SHALL HAVE ANY LIABILITY WITH RESPECT TO THEIR RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT SUCH DAMAGES RESULT FROM (1) LOSS OR DAMAGE TO PROPERTY OR PERSON CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFULL MISCONDUCT OR (2) A PARTY’S INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
THIS LIMITATION OF LIABILITY EXCLUDES GROSS NEGLIGENCE ON THE PART OF BOTH THE CUSTOMER OR Zecast AND INFRINGEMENT CLAIMS AGAINST CUSTOMER AND Zecast.
4.5 DISCLAIMER OF ACTIONS CAUSED BY AND/OR UNDER THE CONTROL OF THIRD PARTIES.
Zecast DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM Zecast’S TECHNOLOGY AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT SERVICES PROVIDED BY Zecast TO CUSTOMER. ALTHOUGH Zecast WILL TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, Zecast CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, Zecast DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
(a) Zecast shall indemnify, defend and hold Customer harmless against any loss, liability, cost or expense related to any third party claim alleging intellectual property infringement or misappropriation related to the Services. Customer shall notify Zecast of any claim, demand or action for which indemnity is sought, and shall cooperate in the defense or settlement of such claim.
(b) If Customer is prevented from receiving the Services due to a claim of intellectual property infringement or misappropriation by a third party, Zecast shall, at its own expense, either (i) procure for Customer the right to receive the Services, or (ii) modify the respective Services so that they are no longer covered by the claim while retaining substantially similar functionality. In the event that neither (i) nor (ii) are commercially feasible, Zecast may immediately terminate any order for specific Service and return any payment for Services or charges relating thereto for which the Services were not delivered.
5 CUSTOMER REPRESENTATIONS.
5.1 Authority and Performance of Customer.
Customer represents and warrants that it has the legal right to enter into the Agreement and perform its obligations there under.
5.3 Control of Content.
Customer acknowledges that Zecast exercises no control whatsoever over the content of the information passing through Zecast Services and it is the sole responsibility of Customer to ensure that the information it and its users transmit, or cause to be transmitted, receive, or cause to be received, complies with all applicable laws and regulations.
5.4 Restrictions on Use of Services.
Customer shall not, without the written consent of Zecast (which may be withheld at Zecast’s sole discretion), resell the Services to any third parties.
6.1 Termination for Cause.
Either Party may terminate the Agreement if: (i) the other Party breaches any material term or condition of the Agreement and fails to cure such a breach within thirty (30) days after receipt of written notice of the same, except in case of failure to pay fees, which must be cured within five (5) days after receipt of written notice from Zecast; (ii) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such a petition or proceeding is not dismissed within sixty (60) days of filing. Customer may also terminate the Agreement in accordance with the terms set forth in section 4.2(d) above.
6.2 No Liability for Termination.
Neither Party shall be liable to the other for any termination or expiration of any Service or the Agreement in accordance with its terms.
6.3 Effect of Termination.
(a) Zecast shall immediately cease providing the Service(s).
(b) Any and all payment obligations of Customer under the Agreement for Service(s) provided through the date of termination shall immediately become due.
(c) Within thirty (30) days of such termination, each Party shall return all Confidential Information of the other Party in its possession and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
All provisions set forth herein regarding confidentiality, warranty, indemnity, and remedies for breaches thereof, including but not limited to sections 3.1, 3.2, 4.3, 4.4, 4.5 and 4.6, survive the termination of the Agreement.
7 MISCELLANEOUS PROVISIONS.
7.1 Force Majeure.
Neither Party shall be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of Zecast), provided that the Party claiming Force Majeure: (i) Gives the other Party prompt notice of such cause, and (ii) Uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
Customer agrees that during the term of the Agreement Zecast may publicly refer to Customer, verbally and in writing, as a Customer of Zecast. Customer agrees to allow Zecast to display Customer’s identifying marks on Zecast’s Web site, and within Zecast’s marketing materials, provided that such references must be made in accordance with Customer’s branding guidelines. Any other reference to Customer requires the written consent of Customer, may be withheld at its sole discretion, and is subject to Customer’s branding guidelines.
Customer agrees to display Zecast’s identifying marks in a manner consistent with how Customer refers to, and displays the marks of, Customer’s other vendors and technology partners, and to identify Zecast as a provider of technology Service(s). Customer agrees to comply with Zecast branding guidelines.
7.3 Government Regulations.
Customer shall not export, re-export, or make available, whether directly or indirectly, any regulated item or information to anyone using any Services provided under the Agreement of such export violates any export control law of any jurisdiction where Customer or Zecast does business.
7.4 Governing Law; Dispute Resolution.
This Agreement is made under, and will be governed by the, and construed in accordance with, the laws of the Commonwealth of Massachusetts. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement.
7.5 Severability; Waiver.
In the event that any provision of the Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Agreement will remain in full force and effect. The waiver of any breach or default of the Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
Customer may assign the Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Customer may not otherwise assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of Zecast, and any attempted assignment or delegation without such consent shall be void. Zecast may delegate performance of certain Services to third parties, provided third parties are bound by the provisions of the Agreement, including Zecast wholly owned subsidiaries, providing Zecast controls the delivery of such Service(s) to Customer and remains responsible to Customer for the delivery of such Service(s). The Agreement shall bind and inure to the benefit of each Party’s successors and permitted assigns.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed email, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving Party as listed on the Order Form or at such other address as may hereafter be furnished in writing by either Party to the other Party. Such notice shall be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
7.8 Relationship of Parties.
Zecast and Customer are independent contractors and the Agreement shall not establish any relationship or partnership, joint venture, employment, franchise, or agency between Zecast and Customer. Neither Customer nor Zecast shall have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent, except as otherwise expressly provided herein.
7.9 Interpretation of Conflicting Terms.
In the event of a conflict between or among the terms of Master Service Agreement, Service Charge Description, the Order Form(s), SLA(s) or any other document made a part hereof, the documents shall control in the following order: the Order Form for each respective Service with the most recent date, the Master Service Agreement and other documents.
7.10 Confidentiality of the Agreement.
The Agreement, Order Form(s), Specification Sheet(s) and all additional documents made a part hereof shall be treated as Confidential Information under the terms of the Agreement.
(b) “Affiliate” refers to any third party, including customers of Subscriber but not including Subscriber’s End Users that either knowingly or unknowingly, indirectly or directly, uses and/or accesses Zecast Services by virtue of Affiliate’s direct or indirect relationship with a Subscriber.
(c) “CAP Network” means the Content Access Point® (CAP) network used by Zecast to provide the Service.
(d) “Confidential Information” means any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, concepts, architectures, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, data logs and formulae related to the current, future and proposed products and Services of each of the Parties, and includes, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information including but not limited to unpublished financial statements, pricing policies and price lists, purchasing requirements, Customer lists, business forecasts, sales and marketing plans and information. “Confidential Information” also includes proprietary or confidential information of any third party who may disclose such information to either Party in the course of the other Party’s business.
(e) “Customer Content” means anything, in digital format, that can be transmitted via any type of data network., including digital information, digital software program(s), digital database(s), digital document(s), digital multimedia(s), digital text(s), digital video(s), digital sound(s), digital picture(s), digital subscription(s), or other thing(s) in a digital form delivered from a Customer’s Internet operations to users or to the Internet operations of other parties.
(f) “Customer Technology” means Customer’s proprietary technology, including Customer’s patented and unpatented proprietary technology, Internet operations design, software tools, software programs, hardware designs, algorithms, software (in source and object forms), user interface designs, network designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party) and also including any derivatives, improvements, enhancements or extensions of Customer Technology conceived, reduced to practice, or developed during the term of this Agreement by Customer.
(g) “Initial Term” means the minimum term for which Zecast shall provide the Service(s) to Customer, as indicated on the Order Form(s).
(h) “Zecast Supplied Equipment” means the computer hardware, software and other tangible equipment and intangible computer code contained therein to be provided by Zecast for use by Customer as set forth on the Order Form(s).
(i) “Zecast Technology” means Zecast’s proprietary technology, know-how and concepts including Zecast patented and unpatented proprietary technology, architecture, software programs, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Zecast or licensed to Zecast by a third party) and also includes any derivatives, improvements, enhancements or extensions of Zecast technology conceived, reduced to practice, or developed during the term of this Agreement by Zecast.
(j) “Order Form” means the document describing the Service(s) and/or Product(s) being purchased by Customer from Zecast, including the Initial Term of Services and price.
(k) “Provisioning Survey Form” means the list that contains the names and contact information (e.g. pager, email, telephone numbers, and mailing addresses) of Customer and the individuals authorized by Customer to provide initial technical and administrative information and changes to technical and administrative information, as delivered by Customer to Zecast and amended in writing from time to time by Customer.
(l) “Renewal Term” means any Service term following the Initial Term, as specified in section 1.2.
(m) “Representatives” mean the individuals identified in writing on the Customer Registration Form and authorized by Customer.
(n) “Server” refers to a device, or collection of devices, such as computers, routers, or other hardware, whose purpose is to respond to requests for content or information processing from End Users via the World Wide Web.
(o) “Service(s)” means the specific Service(s) provided by Zecast as described on the Order Form(s).
(p) “Service Charge Description” means a specific document describing details of various charges and billing procedures.
(q) “Service Commencement Date” means the date Zecast shall begin providing the Service(s) to Customer, as indicated in the Notice of Service Commencement delivered by Zecast to Customer.
(r) “Service Credit” means the Zecast credit issued for payment of Zecast Services.
(s) “Service Level Agreement” means the Zecast document outlining performance standards by which the Service(s) will be provided.
(t) “Service Period” means the period of time during which Zecast Services are to be provided to the Customer.
(u) “Subscriber” refers to a customer of Zecast that receives any Services directly or indirectly from Zecast based on any agreement.